234 F.3d 136 (3rd Cir.

2000)

DAVID ODDI; ERIN ODDI, HIS WIFE

v.
FORD MOTOR COMPANY; GRUMMAN ALLIED
INDUSTRIES INC.; GRUMMAN OLSON BODIES, INC.;
OLSON BODIES, INC.
V.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, THIRD PARTY DEFENDANT
DAVID ODDI, APPELLANT
No. 99-3406

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued: May 9, 2000
Filed October 13, 2000

Appeal from the United States District Court for the Western District of
Pennsylvania, (Civil Action No. 95-cv-01341), District Judge: Hon.
Robert J. Cindrich[Copyrighted Material Omitted][Copyrighted Material
Omitted]
Attorneys for Appellant: Paul A. Tershel, Esq. (Argued) Mary Chmura
Conn, Esq. Tershel & Associates Helena Professional Building 55 South
Main Street Washington, PA 15301
Attorneys for Appellee Ford Motor Company: John E. Wall, Esq.
(Argued) Michael F. Nerone, Esq. Dickie, McCamey & Chilcote, P.C.
Two Ppg Place, Suite 400 Pittsburgh, PA 15222-5402
Attorneys for Appellee Grumman Allied Ind., et al.: John H. Williams,
Esq. (Argued) Gorr, Moser, Dell & Loughney 437 Grant Street 1300 Frick
Building Pittsburgh, PA 15219
Before: Greenberg and McKee, Circuit Judges, and Garth, Senior Circuit
Judge

OPINION FOR THE COURT

McKee, Circuit Judge.

David Oddi was catastrophically injured in a one-vehicle accident when the

truck he was driving struck a guardrail and a bridge abutment. Thereafter, he
filed two separate product liability actions in state court. He sued Ford Motor
Company, which designed and manufactured the chassis of the truck, and he
brought a separate action against Grumman Allied Industries, Inc. (then known
as Olson Bodies, Inc), which designed and manufactured the finished truck.
Ford and Grumman removed the actions to the district court where they were
consolidated.1 Ford and Grumman eventually moved for summary judgment
based upon their contention that Oddi could not establish a prima facie case
because his proposed expert testimony failed to satisfy the requirements of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). The
district court agreed and granted summary judgment in favor of Ford and
Grumman, and against Oddi. The district court subsequently denied Oddi's
motion for reconsideration, and this appeal followed. For the reasons that
follow, we will affirm.

I. FACTS AND PROCEDURAL HISTORY.

On June 21, 1993, Oddi was driving a bread truck owned and maintained by
Continental Baking Company. He was proceeding northbound at exit 14 of
Interstate 79 near Pittsburgh, Pennsylvania, at approximately 55 to 60 miles an
hour when the truck struck a guardrail and bridge abutment. Oddi's legs were
crushed so badly by the force of the accident that they both had to be
amputated. Oddi's left arm was also permanently injured.

The truck was a 1976 special order Ford M-5000 Stripped Chassis that
Continental had ordered through a Ford dealership for use as a bread delivery
truck. When the truck left Ford's possession and control it was comprised only
of basic component parts such as frame rails, axles, engine, drive train, wheels
and a front bumper. Continental took delivery of the Stripped Chassis and
delivered it to Grumman for the design and manufacture of the finished vehicle.
Grumman designed and manufactured all necessary aspects of the vehicle
pursuant to Continental's specifications. This included modifications to the
occupant compartment ("cab") and floor boards. Continental had used the truck
as a bread delivery truck from 1976 through 1993, and it had been driven for
hundreds of thousands of miles in that capacity before this accident occurred.2

The suits that Oddi filed after his accident asserted claims against Ford and
Grumman under theories of strict liability, negligence, breach of warranty and
failure to warn.3 Oddi claimed Ford's defective design of the front bumper of
the bread truck allowed the underside of the truck to ride up or "ramp" onto the
guardrail and strike the bridge abutment.4 He also claimed that after the truck
ramped onto the guardrail, the left front wheel of the truck hooked over the rail
preventing him from steering away from the bridge abutment. He alleged that
defects in the cab (designed and manufactured by Grumman) had caused the
flooring to bend upon impact with the bridge abutment and apply such force as
to crush both his legs. He also alleged that the truck rolled over and down an
adjacent embankment after it struck the bridge abutment.

Ford denied any design defects and also denied that the truck ramped the
guardrail. According to Ford, the truck simply struck the guardrail and rolled
over it. Similarly, Grumman denied that the flooring was deficient or that it
caused any injury at all.5

Oddi retained two experts to support his contention that his injuries were
caused by defects in the manufacture and design of the truck. John N. Noettl,
an engineer, was retained to testify about the defective design, and Leon
Kazarian, a bio-mechanist, was retained to testify about the process by which
Oddi received his injuries.

After deposing both of Oddi's experts, Ford and Grumman moved for summary
judgment. Ford argued that all of Oddi's claims should be dismissed because
Oddi's proposed expert testimony could not survivethe threshold inquiry
required under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579
(1993), and, therefore, Oddi could not establish a prima facie case. Grumman
did not initially make a specific challenge under Daubert. Instead, Grumman
initially argued only that Oddi's evidence was either inadmissible or failed to
satisfy Oddi's burden of proof.

Oddi responded to the summary judgment motions by filing a brief in

opposition, an affidavit of Noettl, and excerpts of Noettl's deposition testimony.
Oddi did not request an evidentiary hearing or oral argument, nor did he submit
anything else in response to Ford's Daubert challenge.

10

After reviewing Oddi's submissions in opposition to the summary judgment

motions, Grumman filed a reply brief in which it argued that Oddi still could
not meet his burden of showing that the truck was not crashworthy. Grumman
also challenged Oddi's experts under Daubert. Oddi responded by filing a

motion to strike Grumman's reply brief claiming that the district court had not
granted leave to Grumman to file it. In the alternative, Oddi sought leave to
submit opposing affidavits if needed.
11

On March 31, 1999, the district court entered a Memorandum Opinion in which
it ruled that Oddi's experts did not meet Daubert's admissibility standards.
Absent the testimony of those experts, Oddi could not establish a prima facie
case of liability, and the district court therefore granted summary judgment in
favor of Ford and Grumman.

12

Oddi filed a motion for reconsideration in which his major argument was that
the district court should have held a hearing on the Daubert challenge before
granting summary judgment. However, the district court disagreed and on
September 2, 1999, denied his motion for reconsideration. Oddi then sent a
letter to the district court enclosing a copy of our August 2, 1999 decision in
Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3d Cir. 1999). Oddi argued that
Padillas required that an evidentiary hearing be held so that he could meet the
defendants' Daubert challenges. However, the district court disagreed and
issued a supplemental Memorandum Opinion in which it held that Oddi was not
entitled to an evidentiary hearing.

13

This appeal followed.

14

II. THEORIES OF LIABILITY.

15

Although Oddi based his suits upon several different theories of liability, he
only appeals the district court's grant of summary judgment on his
crashworthiness and negligent failure to test claims. We will begin our inquiry
by discussing each of those theories.

16

A. Crashworthiness.

17

"The term crashworthiness means the protection that a motor vehicle affords its
passenger against personal injury or death as a result of a motor vehicle
accident." Kuptez v. Deere & Co., Inc., 644 A.2d 1213, 1218 (Pa. Super. 1994).
The doctrine "imposes liability on the manufacturer not for causing the
accident, but rather for failing to minimize the injuries or even increasing the
severity of the injuries sustained in an accident brought about by a cause other
than the alleged defect." Habecker v. Clark Equipment Co., 36 F.3d 278, 283
(3d Cir. 1994)("Habecker III"). "[T]he crashworthiness doctrine permits a
plaintiff to recover for enhanced injuries, i. e., only for those injuries he can

prove he would not have sustained if he had been riding in a crashworthy

vehicle." Carrasquilla v. Mazda Motor Corp., 963 F. Supp. 455, 458 (M. D. Pa.
1997)(citations and internal quotations omitted). "[I]f enhanced injuries cannot
be shown, then no liability exists as to the manufacturer." Id.
18

Crashworthiness is a subset of products liability law. 6 Although the

Pennsylvania Supreme Court has not yet adopted the crashworthiness doctrine
for products liability cases,7 we have predicted that it would do so in an
appropriate case. See Habecker v. Clark Equipment Co., 942 F.2d 210 (3d Cir.
1991)("Habecker II").8 To establish a cause of action on a theory of
crashworthiness, a plaintiff must show: (1) the design9 of the product was
defective; (2) an alternative, safer design that was practical existed; (3) what
injuries, if any, the plaintiff would have received had the alternative design
been used; and (4) the defective design caused or exacerbated specific
injuries.10 Barker v. Deere and Co., 60 F.3d 158, 161 n.3 (3d Cir. 1995)(citation
omitted).

19

B. Negligent Failure to Test.

20

Oddi alleged that Ford and Grumman were negligent for "[f]ailing to do
adequate, necessary and proper testing of the vehicle prior to the sale which
would have revealed the dangerous condition of the product." Complaint, at P
4r. Oddi refers to this theory of recovery as the tort of "negligent failure to test."
Oddi's Br. at 26. He claims that its elements are as set forth in 1836 Callowhill
Street v. Johnson Controls, Inc., 819 F. Supp. 460 (E. D. Pa. 1993). Oddi argues
that under 1836 Callowhill Street he can recover under this theory if he
establishes that: (1) the manufacturer has a duty to test its product; (2) the
manufacturer breached that duty, i. e., the manufacturer did not test; and (3) the
breach or the failure to test was the proximate cause of the plaintiff's injury.
Oddi's Br. at 26.

21

In 1836 Callowhill, the court made several assumptions for purposes of ruling
on a motion for summary judgment. The court assumed that defendant's
product was defective, that the defect caused the alleged damage, and that the
defendant had a duty to adequately test the defective product to discover the
defect. Nevertheless, the court granted summary judgment to the defendant as
to plaintiff's negligence claim. The court concluded that plaintiff did not "offer[
] sufficient evidence of a breach of that duty [to] create a genuine dispute of
fact." Id. at 465. Consequently, although the court stated, that "[n]egligent
failure to test is cognizable as a common law negligence theory," 819 F. Supp.
at 464-65, that decision cannot fairly be said to support the proposition that a
manufacturer has a general duty to test a product to determine if it is defective.

22

Therefore, even if 1836 Callowhill were precedential and correctly stated the
law of Pennsylvania, we would still be compelled to conclude that Oddi has
cited no authority that establishes the principle that a manufacturer has a
general duty to test its product. We have found no authority to support Oddi's
contention that Pennsylvania recognizes an independent tort for "negligent
failure to test," and Oddi has offered none.

23

Rather, it appears that Oddi's "negligent failure to test" claim is, at bottom,
nothing more than a routine products liability case based on negligence, and
that the claimed negligence is the failure to test. Under Pennsylvania law, in
order for an injured party to establish a cause of action against a manufacturer
based upon the latter's breach of a duty, "the plaintiff must prove, not only that
the product was defective and that the defect caused his[/her] injury, but in
addition, [the plaintiff must prove] that in manufacturing or supplying the
product the defendant failed to exercise due care." Dambacher v. Malis, 485
A.2d 408, 424 (Pa. Super. 1984). Thus, Oddi must first establish that the
vehicle was defective.

24

Thus, whether we view Oddi's theory as crashworthiness or negligence arising

from a failure to test, he must establish a defect in the design of the truck in
order to recover, and he must then show that that defect caused his injuries. As
noted above, he attempted to do this through the proffered expert testimony of
John N. Noettl and Leon Kazarian, but the district court refused to admit their
expert testimony.

25

III. STANDARDS FOR ADMISSIBILITY OF EXPERT TESTIMONY.

Federal Rule of Evidence 702 states:

26

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.

27

The Supreme Court amplified the operation and scope of Rule 702 in Daubert
v. Merrell Dow Pharmaceuticals, Inc., supra. There, the Court held that
scientific knowledge requires

28

an inference or assertion... derived by the scientific method. Proposed

testimony must be supported by appropriate validation -- i.e., "good grounds,"
based on what is known. In short, the requirement that an expert's testimony

pertain to "scientific knowledge" establishes a standard of evidentiary

reliability.
29

Id. at 590. Rule 702 thus "clearly contemplates some degree of regulation of the
subjects about which an expert may testify." Id. at 589. Consequently, the
Court established a "gatekeeping role for the [trial] judge." Id. at 597.

30

[T]he trial judge must determine at the outset, pursuant to Rule 104(a), 11
whether the expert is proposing to testify to (1) scientific knowledge that (2)
will assist the trier of fact to understand or determine a fact in issue. This entails
a preliminary assessment of whether the reasoning or methodology underlying
the testimony is scientifically valid and of whether that reasoning or
methodology properly can be applied to the facts in issue.

31

Id. at 592-93. The proponent must satisfy this burden "by a preponderance of
proof." Id. at 593 n.10.

32

Although "[m]any factors will bear on the inquiry," the Court has set out some
"general observations," Id. at 593, that serve as guideposts in determining if
proffered expert testimony is sufficiently relevant and reliable to be
admissible.12 First, "a key question to be answered in determining whether a
theory or technique is scientific knowledge that will assist the trier of fact will
be whether it can be (and has been) tested." Id. Second, the court should
consider "whether the theory or technique has been subjected to peer review
and publication." Id. Publication, which is an element of peer review, "is not a
sine qua non of admissibility: it does not equate with reliability." Id. It may,
however, suggest "good science." Id. "The fact of publication (or lack thereof)
in a peer reviewed journal will be a relevant, though not dispositive,
consideration in assessing the scientific validity of a particular technique or
methodology upon which an opinion is premised." Id. at 594. Third, "in the
case of a particular scientific technique, the court ordinarily should consider the
known or potential rate of error, and the existence and maintenance of standards
controlling the technique's operation." Id. Fourth, and finally, "general
acceptance" can have bearing on the inquiry. Id. "Widespread acceptance can
be an important factor in ruling particular evidence admissible, and a known
technique which has been able to attract only minimal support with the
community may properly be viewed with skepticism." Id. However,"general
acceptance" is "not a necessary precondition to the admissibility of scientific
evidence." Id. at 597. The Court also emphasized that the "inquiry envisioned
by Rule 702 is... a flexible one," and noted that the "focus... must be solely on
principles and methodology, not on the conclusions they generate." Id. at 595.

33

Shortly after the Supreme Court decided Daubert, we applied its teachings in In
re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994)("Paoli II").
There, we concluded that Rule 702 has two major requirements;
"qualifications" and "reliability," and noted that an expert's "qualifications" are
interpreted liberally. In discussing "Reliability" we listed the factors enunciated
in Daubert but noted the continued vitality of our prior analysis in United States
v. Downing, 753 F.2d 1224 (3d Cir. 1985). We held that a "district court should
take into account all of the factors listed by either Daubert or Downing as well
as any others that are relevant," Paoli II, at 742, in conducting an inquiry into
the reliability of proposed expert testimony. The factors that are relevant under
Daubert and Downing include: "(1) whether a method consists of a testable
hypothesis; (2) whether the method has been subjected to peer review; (3) the
known or potential rate of error; (4) the existence and maintenance of standards
controlling the technique's operation; (5) whether the method is generally
accepted; (6) the relationship of the technique to methods which have been
established to be reliable; (7) the qualifications of the expert witness testifying
based on the methodology; and (8) the non-judicial uses to which the method
has been put." Paoli II, at 742 n. 8.

34

In Paoli II, we also stated that the expert's testimony must "fit," in that it must
assist the trier of fact. Id. at 743. Admissibility thus depends in part upon "the
proffered connection between the scientific research or test result to be
presented and particular disputed factual issues in the case." Id. This standard is
not intended to be a high one, nor is it to be applied in a manner that requires
the plaintiffs "to prove their case twice -- they do not have to demonstrate to the
judge by a preponderance of the evidence that the assessments of their experts
are correct, they only have to demonstrate by a preponderance of evidence that
their opinions are reliable." Id. at 744. This is a very important distinction. The
test of admissibility is not whether a particular scientific opinion has the best
foundation or whether it is demonstrably correct. Rather, the test is whether the
"particular opinion is based on valid reasoning and reliable methodology."
Kannankeril v. Terminix International Inc., 128 F.3d 802, 806 (3d Cir. 1997).
"The analysis of the conclusions themselves is for the trier of fact when the
expert is subjected to cross-examination." Id.

35

Nonetheless, "conclusions and methodology are not entirely distinct from one
another." General Electric Co. v. Joiner, 522 U. S. 136, 146 (1997). A court
"must examine the expert's conclusions in order to determine whether they
could reliably flow from the facts known to the expert and the methodology
used." Heller v. Shaw Industries, Inc., 167 F.3d 146, 153 (3d Cir. 1999). "A
court may conclude that there is simply too great a gap between the data and
the opinion proffered." Joiner, at 146; see also In re TMI Litigation, 193 F.3d

613, 682-683 (3d Cir. 1999), opinion amended by 199 F.3d 158 (3d Cir.), cert.
denied sub nom. General Public Utilities Corp. v. Abrams, 120 S. Ct. 2238
(2000) and Dolan v. General Public Utilities Corp., 120 S. Ct. 2238 (2000).
36

Although Daubert was decided in the context of scientific knowledge (whether

evidence established a connection between the defendant's drug and birth
defects), Daubert has since been extended to the kind of "technical or other
specialized knowledge," at issue here. See Kumho Tire Co., Ltd. v.
Carmichael, 526 U. S. 137, 141 (1999) ("We conclude that Daubert's general
holding--setting forth the trial judge's general `gatekeeping' obligation--applies
not only to testimony based on `scientific' knowledge, but also to testimony
based on `technical' and `other specialized' knowledge."). The expert in Kumho
Tire was an engineer and the Court there framed the issue before it as "how
Daubert applies to the testimony of engineers and other experts who are not
scientists." Id. at 141.

37

We examine the specific testimony that was excluded here against this
background. "We afford a district court's application and interpretation of Rule
702 plenary review, Paoli II at 749, but we review the court's decision to admit
or reject testimony under an abuse of discretion standard. Joiner, at 143. An
abuse of discretion arises when the district court's decision "rests upon a clearly
erroneous finding of fact, an errant conclusion of law or an improper
application of law to fact." Hanover Potato Products, Inc. v. Shalala, 989 F.2d
123, 127 (3d Cir. 1993). An abuse of discretion can also occur "when no
reasonable person would adopt the district court's view." Id. We will not
interfere with the district court's exercise of discretion "unless there is a definite
and firm conviction that the court below committed a clear error of judgment in
the conclusion it reached upon a weighing of the relevant factors." Id.

38

IV. THE CHALLENGED EXPERT TESTIMONY.

39

A. John N. Noettl.

40

Noettl, the accident reconstruction/design engineer, was to testify that the truck
was defectively designed.13 Noettl's proffered testimony is contained in a
preliminary report dated June 16, 1997; an amended report dated December
4,1997; an affidavit dated September 23, 1998; and two depositions.

41

In his preliminary report, Noettl opined that the truck Oddi was driving

42

rode up on the guard rail because of the failure of the left side of the front

bumper.... Had the bumper not significantly deformed back and inward the
vehicle would have been deflected by the guard rail.
43

It is also my opinion that the floor board allowed intrusion by the guard rail and
possibly the concrete barrier into the occupant compartment in the area near the
brake pedal and where the driver's feet and legs would be located. This
intrusion was a direct cause of the injuries to Mr. Oddi.

44

Had the bumper and the floor board been properly structurally designed the
vehicle would not have gone over the guard rail and the occupant compartment
would not have been intruded by the guard rail and concrete barrier. App. at
104-105.

45

After he reviewed the deposition of defense expert Donald Edelen, Noettl

submitted an amended report, dated December 4, 1997. In it he stated:

46

It is my opinion that [Ford] should have warned [Grumman] of the fact that the
front bumper on their chassis is for decorative trim only and will not offer
protection to the body and occupant in a collision. As a result of the design of
the chassis and bumper, the front wheels of the vehicle become exposed in
foreseeable accident situations. Ford should have specifically warned that the
bumper was extremely weak due to the fact that it had no backing plate or
brackets for reinforcement and because it had holes in the bumper placed
immediately adjacent to the outside where the bumper mounted to the chassis.

47

*****

48

Neither Ford nor Grumman conducted any testing that involved the vehicle
impacting with guardrails. Neither Ford nor Grumman incorporated any
design(s) into the chassis or body of the vehicle that would prevent or reduce
the likelihood of the vehicle going over a guardrail in the event of an impact
with a guardrail. Due to the vehicle's height, weight, and design the vehicle as a
propensity to ramp up onto the guardrail in foreseeable collision situations.14..
This design defect caused or contributed to the cause of the accident and to Mr.
Oddi's injuries.

49

App. at 100-01.

50

In response to summary judgment motions, in which Ford and Grumman noted

certain deficiencies in Noettl's submissions, Noettl prepared an affidavit which

Oddi's counsel attached to Oddi's response to the summary judgment motions.

That affidavit is dated September 23, 1998, and reads, in relevant part:
51

1. Given the basic design of this vehicle, the following is a description of

alternative designs that in my opinion, would have (1) prevented the Oddi
vehicle from ramping the guard rail and (2) prevented the intrusion which
occurred of structural components into the occupant compartment.

52

A. A reinforced bumper. The bumper on the subject vehicle had a measured 3.5
X 6.5 inches holes at critical stress points next to the frame rails to which the
bumper is attached. The holes were designed and manufactured by the bumper
manufacturer. The bumper should have been reinforced at these points by
eliminating the holes and/or welding inch to inch steel reinforcement wedges
between the frame rails and the upper and lower edges of the back side of the
bumper.

53

B. Steel brackets should have been welded to the... back side of the upper and
lower edges of the back of the bumper.

54

C. The bending and tensile properties and or metal thickness of the bumper
should have been increased in addition to A or B as described above.

55

D. Various bumper configurations such as tubular or cylinder designs should

have been manufactured and tested in addition to A, B, and C above. These
bumper configurations are stronger than flat bumpers with similar metal
characteristics.

56

E. The occupant compartment should be reinforced by increasing the bending

and tensile properties and metal thickness (by.125 inch increments) in the area
of the floorboard and fire wall and\or by welding or forming ribbing to the
metal in this area. Safety factors of fifty or hundred percent are common in
products.

57

2. I have observed bracket and wedge bumper reinforcements on similar

vehicles. As to metal thickness -- the steering components on the subject
vehicle were protected by a measured.35 inch (approximately) thick steel
enclosure while the bumper on this vehicle was designed to be.208 inch thick-a difference of approximately .142 inch.

58

3. Guard rails of this type are common in road way design and vehicle

encounters of the type that happened with the Oddi vehicle should be expected
by manufacturers.
59

4. The design changes I have described were capable of being incorporated into
the design and manufacture of this truck in 1976 using basic engineering design
and manufacturing techniques.

60

5. The design changes I have described would not interfere with the function or
intended use of the truck.

61

6. In my opinion the above design changes would have greatly increased

bumper strength and occupant compartment protection with very little total
incremental vehicle manufacturing cost.

62

7. It is my opinion that if the design changes described above were

incorporated into the manufacturing process of the Oddi vehicle it would not
have ramped on to the guard rail and would not have experiences sudden
deceleration from striking the bridge abutment. This would have prevented the
intrusions into the occupant compartment and the significant injury which Mr.
Oddi sustained.

63

App. at 123-24.

64

In one of his depositions, Noettl testified that he based the opinions contained in
his June 16, 1997 preliminary report in part on a review of accident reports,
photographs, witnesses' statements, Oddi's medical records, and Oddi's
deposition testimony; and in part on his own [Noettl's] "experience," "academic
training," and"research that [he does] almost on a continuous basis, reviewing
technical literature." App. at 138-139. However, Noettl was unable to identify
any particular literature that he relied upon to form any of the opinions
contained in his preliminary report. Id. Noettl testified that he did view films of
crash tests in forming his opinions, Id. and he insisted that the alternative
designs he suggested could be found in"any machine design book." Id. at 4849. Noettl did list a number of accepted authorities and textbooks in a document
Oddi's counsel refers to as an "offer of proof." Id. at 201.

65

Ford and Grumman point to specific portions of Noettl's depositions which they
claim plainly demonstrate that Noettl's proffered expert testimony does not
meet Daubert standards. Noettl opined that the front bumper was defective
because it "bent back" when it struck the guardrail. He explained this was a
defect because"it was designed with a large lever arm on the vehicle, out from

the frame rail. It had holes in it for towing, which, in my opinion, would greatly
weaken the structure, especially with that large lever arm on it which would
allow it to be bent back." App. at 45. Noettl claimed that the bumper should
have been designed "with either bracketry that would go from the frame rail out
to the center part of that part of the bumper, or what [he referred to] as a
backing wedge." Id. at 47. According to Noettl, the "backing wedge" "would be
like a V[ ]." Id.
66

However, when Noettl was asked to elaborate upon his belief that the bumper
was defectively designed because it bent backward upon striking the guardrail
the following exchange occurred:

67

Q: Now, have you determined what force was inflicted on the guardrail at the
time of initial impact with the truck?

68

A: No, I haven't. No.

69

Q: Have you determined what force the truck inflicted on the bridge abutment
and the rail on top of the bridge abutment when it made contact with that?

70

A: No, the reason for answering both those questions, you would have a range
of variables, also, but guardrails are designed to absorb energy and deflect
vehicles. You would have to make an awful lot of assumptions.

71

Q: Have you determined or measured the strength or rigidity of the guardrail?

72

A: No.

73

Q: You haven't ascertained how much force it could hold, is that correct?

74

A: That's correct. App. at 43-44.

75

Later in the deposition, Noettl testified as follows:

76

Q: Do you know how much force it took to bend that bumper to the point
where it's bent?

77

A: No, I don't.

78

Q: Do you know how much force that bumper was capable of sustaining

78

Q: Do you know how much force that bumper was capable of sustaining
without bending? Have you determined that?

79

A: I haven't determined that, right. Id. at 46-47.

80

When Noettl was questioned about his proposed designs for the bumper, and
design changes that would have been necessary to remedy the suggested defect,
he offered several possibilities, but he conceded that he had not attempted to test
or substantiate the modifications he was suggesting.

81

Q: What type of metal should the wedge be constructed from?

82

A: It could be the same as the bumper, if you wanted to, but you just turn it on
end. You could have many, many choices on that.

83

Q: What if you used a brace? What type of metal should that brace be
constructed from?

84

A: Again, you could use the same as the bumper. Again you would have a lot
of choices on that. The bracketry would probably not be as strong as the wedge.
Probably not. Test it and maybe you would achieve a strength that would far
exceed anything you could expect.

85

Q: What would be the tensile strength or the gauge of the metal have to be on
both of those options?

86

A: The way you go through is look up in books and you say, "Here. We got
some metal here and let's try this." Certain gauge, certain strength, something
that is readily available. It's not a big thing, is what I'm trying to say. You
certainly would not cut holes in it right at one of the most critical points of
where you major bending force is going to occur, which is at your railing.

87

Q: So this would be something relatively simple to look up in a book, and you

could determine from the computations in some engineering book what you
should be using. What would the name of the book be?

88

A: Any machine design book.

89

Q: Is that a particular book or is that a type of a book, machine design book?

90

A: That's a type of book.

91

Q: Could you give me an authority?

92

A: There are machine design books that give you all types of metal gauges. If
you go through the design process for any of these things on a bumper, frame
rails, exactly what they do -- they don't sit down. They don't do finite element
analysis. They look up in books what metal thickness, what's our yield strength,
what's our tensile properties of this metal, bang, bang, bang. We're going to use
this.

93

Q: Have you done that?

94

A: No. I haven't done that, no.

95

Q: So you don't know what the thickness would have to be, what the metal
gauge, what the tensile strength --

96

A: Right.

97

Q: -- what type of material you would need to use; is that correct?

98

A: I told you I would use -- probably start with the same material that you have
in the bumper. Take a piece of metal, turn it on its edge, put it in back of it,
weld it on there for a test, see what strength you do gain out of this as far as
impact, as far as bending moments and as far as shearing. You sure hope it
won't shear off. You would do that. You would say,"I want it a little bit
stronger." The easiest way, by far, is to thicken the metal. That's all you have to
do. Get a lower gauge metal and put that on there and try it again.

99

Q: How thick would the metal have to have been to have not deformed in this
impact?

100 A: I would say, in my opinion, half inch to an inch and a half range would be
more than adequate to withstand the force on edge. That's the thickness, not the
width.
101 Q: What would the width be?

102 A: I don't know. Three inches or so, four inches.

103 B. Leon Kazarian.
104 Kazarian, the biomechanical engineering consultant, was retained to explain
how Oddi received his injuries. Kazarian authored a preliminary report, dated
June 18, 1997, in which he opined: "On impact, the end of the bridge pierced
and penetrated the driver's occupant compartment impaling, cutting and
crushing Mr. Oddi's extremities." The report noted that Oddi "was found
outside the vehicle on the grassy slope next to the bridge." App. at 113. Though
Oddi had been thrown from the truck, Kazarian concluded that Oddi had
"sustained his primary injuries at the time he was in the driver's seated
position," and that his injuries occurred "as a result of the bridge piercing,
penetrating and crushing his extremities while he was in the driver's
compartment." Id.
105 The following exchange occurred during Kazarian's deposition:
106 Q: Have you considered what would have happened to Mr. Oddi in the event
that there was no compromise to the floor of the vehicle and he still had the
same accident? Are you able to tell us what would have happened to him
physically?
107 A: No, not as I sit here.
108 Q: It could have been worse, it could have been better?
109 A: I don't know.
110 *****
111 Q: And you hold no opinion on whether or not the vehicle mounted the
guardrail, correct?
112 A: That's correct.
113 Q: Given that, have you considered what injuries, if any, Mr. Oddi would have
sustained if the vehicle didn't mount the guardrail or ramp the guardrail?

114 A: No.
115 Q: So I take it that since you haven't considered that aspect, that you hold no
opinions as to what injuries, if any, Mr. Oddi would have sustained had the
vehicle not mounted or ramped the guard rail.
116 A: Yes. As I sit here, I haven't thought about that.
117 Grumman's Br. at 32. Therefore, although Kazarian testified about how Oddi
received his injuries, he was unable to offer an opinion on the key aspect of
Oddi's crashworthiness claim, i.e., whether Oddi's injuries were exacerbated by
the design of the bread truck.
118 V. DISCUSSION.
119 Oddi argues that the district court erred in denying his motion for an in limine
hearing on the Daubert challenge, and in granting summary judgment. We will
address each argument separately.
120 A. Necessity for an in limine Hearing under Daubert.
121 Oddi bases his contention that a hearing was required upon Kumho Tire
(decided just one week before the district court granted summary judgment
here), and our holding in Padillas.15 We decided Padillas one month after the
district court granted summary judgment.
122 Oddi submits that his case had been pending for four years before the Supreme
Court decided Kumho Tire, and that Kumho Tire was not decided until after
each of the following occurred in his case: (1) he filed his experts' reports; (2)
his experts had been deposed; (3) defendants had filed their summary judgment
motions; and (4) he had filed his papers in opposition to the summary judgment
motions. Oddi's Br. at 15. Moreover, he claims that from the time he started his
lawsuit until Kumho Tire was decided, the law did not assess nonscientific
expert testimony under Daubert. Id. Nonetheless, the district court expressly
subjected Noettl's testimony to Daubert scrutiny under Kumho Tire. See
3.31.99 Dist. Ct. Op. at 3, 7.
123 Thus, though not clearly articulated, Oddi is arguing that Kumho Tire worked a
substantial change in the law and that the district court blind-sided him by
subjecting his experts' testimony to a Daubert analysis. He contends that the

district court's failure to hold an evidentiary hearing "precluded [him] from ever
having the opportunity to present [his] expert testimony in accordance with the
Kumho decision." Oddi's Br. at 15.
124 Oddi's claim that the scope of Daubert was unsettled until Kumho Tire is not
without force. See In re Unisys Savings Plan Litigation, 173 F.3d 145, 162 n.2
(3d Cir. 1999) (Becker, J., dissenting). Prior to Kumho Tire, there was
substantial uncertainty about whether Daubert applied to nonscientific expert
testimony. Contrast Surace v. Caterpillar, Inc., 111 F.3d 1039, 1055-56 (3d Cir.
1997); United States v. Valasquez, 64 F.3d 844, 847-50 (3d Cir. 1995); and
Habecker III, at 289-90 (3d Cir. 1994), with Lauria v. National Railroad
Passenger Corp., 145 F.3d 593, 599 n.7 (3d Cir. 1998).16 In Lauria we not only
concluded that Daubert scrutiny did not apply to the proffered testimony of an
engineer, but also that a nonscientific expert's testimony was admissible under
Rule 702 based upon the expert's experience and knowledge. Id. at 599.
125 Nevertheless, we do not think that Oddi's reliance on Kumho Tire establishes
that the district court erred in granting summary judgment here without an in
limine hearing. Oddi was surely alerted to this problem when Ford raised a
Daubert challenge in its summary judgment motion. In his brief in opposition to
the defendants' summary judgment motions, Oddi specifically discussed
Daubert, and argued that his experts' testimony satisfied Daubert. App. at 7094. Despite the uncertain scope of Daubert, he never argued that Daubert did
not apply to nonscientific expert testimony. Moreover, Oddi now reads far too
much into our decision in Padillas.
126 It is not clear whether Oddi is arguing that Padillas always requires a hearing or
that the procedural posture of his case is so like Padillas that the district court
abused its discretion by not holding an in limine hearing. In Padillas, we
focused upon the process by which the district court there determined that
proffered expert testimony was inadmissible under Daubert. 186 F.3d at 417
("We do not reach the question whether the district court abused its discretion
in holding the [expert's] Report inadmissible under Rule 702. Our concern is
with the process by which the court arrived at its ruling.").
127 Padillas had been injured while hosing down a chicken cutting machine
manufactured by Stork-Gamco. The cutting machine had an exposed cutting
blade. He sued Stork-Gamco alleging strict products liability, negligence,
breach of warranty and failure to warn. To establish liability, Padillas retained
an engineering expert (Lambert) who opined in a written report that StorkGamco's failure to provide a guard that would prevent the snagging of the hose
during wash-down and its failure to protect workers from the cutting blade

resulted in a defective machine that caused his injury. Id. at 416.

128 Stork-Gamco filed a motion for summary judgment, arguing that Lambert's
report did not meet the Daubert standards for admissibility. The district court
agreed, excluded the report, and then granted summary judgment to StorkGamco. In reversing and remanding for an in limine hearing on Lambert's
proffered testimony we criticized the process used by the district court. We
noted at the outset that we have "long stressed the importance of in limine
hearings under Rule 104(a) in making the reliability determination under Rule
702 and Daubert." Id. at 417 (internal quotations and citations omitted). We
also reiterated the importance of an in limine hearing in ruling upon Daubert
challenges even in the absence of a request for such a hearing. We stated that
the district court has an "independent responsibility for the proper management
of complex litigation" and emphasized that the plaintiff "need[s] an opportunity
to be heard" on the critical issues of scientific reliability and validity. Id. The
opportunity to be heard is important because it allows a plaintiff"a chance to
have his or her expert demonstrate and explain the`good grounds' upon which
the expert evidence rests." Id. at 418.
129 However, our analysis in Padillas cannot be divorced from the record that was
before us. In commenting upon the district court's Daubert analysis of
Lambert's report, we noted that it "does not establish that Lambert may not
have `good grounds' for his opinions, but rather, that they are insufficiently
explained and the reasons and foundations for them inadequately and perhaps
confusingly explicated." Id. Lambert's report was quite conclusory and did not
adequately explain the basis for his opinion, or the methodology employed in
reaching his conclusions. It was in that context that we held that if the district
court "was concerned with the factual dimensions of [Lambert's] evidence... it
should have had an in limine hearing to assess the admissibility of the report
giving the plaintiff an opportunity to respond to the court's concerns." Id.
(citation and internal quotations omitted). We stated, "when the ruling on
admissibility turns on factual issues,..., at least in the summary judgment
context, failure to hold [an in limine] hearing may be an abuse of discretion."
Id. (emphasis added).
130 Oddi attempts to equate the district court's rejection of Noettl's testimony here
with the rejection of Lambert's testimony in Padillas. He submits that the
district court found the basis of Noettl's conclusions "confusing." Oddi's Br. at
13. Consequently, he argues, the district court should have conducted an
evidentiary hearing as we ordered in Padillas. Id.
131 Initially, we suspect that Oddi is being disingenuous in stating that the district

court found that the basis of Noettl's conclusions was "confusing." The district
court's reference to "confusion" had nothing to do with its decision to exclude
Noettl's testimony. Rather, the "confusion" stemmed from a statement Noettl
made in his December 4, 1997 amended report. He there referred to an alleged
defect based upon the height, weight and design of the truck. He said those
factors created a propensity to ramp. In his motion for reconsideration, Oddi
claimed that he was entitled to reconsideration because the district court
"disregarded his defect claim regarding the vehicle's `propensity to ramp' "
because of the size of the vehicle. 9/2/99 Dist. Ct. Op. at 9-10. The district
court's "confusion" was nothing more than a reference to the fact that neither
the court nor the defendants could have interpreted Noettl's testimony about the
truck's"propensity to ramp" as advancing an additional design defect apart from
the defective bumper and flooring. To alleviate its "confusion," the district
court reviewed Noettl's deposition testimony on that issue and quite correctly
concluded that Noettl was not raising an alternative or additional design defect
theory. 9/2/99 Op. at 13. See n.15, supra. Thus, the district court did not
disregard any of Noettl's theories and was not confused about the basis of
Noettl's opinions.
132 More to the point however, Oddi's attempt to equate his circumstances with
those in Padillas ignores the record here. As noted above, the record in Padillas
was scant, and the district court therefore had no way of determining how
Lambert had arrived at his conclusions about the chicken cutting machine.
Accordingly, we held that the court had an independent obligation to reach a
decision upon a record that had been adequately developed to allow for a
meaningful evidentiary determination. We based that holding upon two
separate considerations. "First,... the court has an independent responsibility for
the proper management of complex litigation. Second, because plaintiff could
not have known in advance the direction the district court's opinion might take
and thus needed an opportunity to be heard on the critical issues before having
his[/her] case dismissed." Id. at 417 (citations omitted).
133 Here, however, the evidentiary record pertaining to Oddi's expert was far from
scant. As noted, it consisted of: (1) a preliminary report; (2) an amended report,
prepared after Noettl reviewed the deposition testimony of a defense expert; (3)
an affidavit specifically prepared to meet the defendants' Daubert challenge
contained in their summary judgment motions; and (4) Noettl's two depositions.
The district court therefore apparently saw no need to conduct a hearing before
ruling on the Daubert challenges. This is consistent with Padillas and perfectly
appropriate under Kumho Tire.
134 In Kumho Tire the expert's proffered testimony was taken from deposition

testimony. 526 U. S. at 142 ("The plaintiffs rested their case in significant part
upon deposition testimony provided by an expert in tire failure analysis,..., who
intended to testify in support of their conclusion."). In the district court, the
defendants requested an in limine hearing to challenge the plaintiff's expert's
proffered testimony. However, the district court refused that request, finding
that two depositions submitted to it (one from the case before it and one from
an unrelated case involving similar issues) were sufficient to allow an inquiry
under Daubert. See Carmichael v. Sanyang Tires, Inc., 923 F. Supp. 1514, 1518
(S. C. Ala. 1996). In approving the process the district court used to conduct its
Daubert inquiry the Court wrote:
135 The trial court must have the same kind of latitude in deciding how to test an
expert's reliability, and to decide whether or when special briefing or other
proceedings are needed to investigate reliability, as it enjoys when it decides
whether or not that expert's relevant testimony is reliable. Our opinion in Joiner
makes clear that a court of appeals is to apply an abuse-of-discretion standard
when it reviews a trial court's decision to admit or exclude expert testimony.
That standard applies as much to the trial court's decision about how to
determine reliability as to its ultimate conclusions.
136 526 U. S. at 152 (citations and internal quotations omitted)(emphasis added).
137 The same situation obtains here. Although Oddi strenuously claims that he was
entitled to an in limine hearing, he does not even begin to suggest how such a
hearing would have advanced his position, and we can not begin to imagine
that it would have. He does not claim that he has any new or additional
information to present, and he does not claim that the factual record before the
district court was somehow incomplete insofar as Noettl's testimony is
concerned.17 Rather, he merely insists that he is entitled to a hearing under
Padillas. However, "Padillas certainly does not establish that a District Court
must provide a plaintiff with an open-ended and never-ending opportunity to
meet a Daubert challenge until plaintiff `gets it right.' " In re TMI Litigation,
199 F.3d at 159. Yet, that is where Oddi's argument would take us.
138 Moreover, Oddi's reliance upon a denial of an in limine hearing also reflects a
basic misperception about the nature of the hearing the court might have
conducted even if it had afforded Oddi such a hearing. In Downing, we
reiterated that trial courts retain significant discretion to determine in each
instance "the procedure [it] should follow in making preliminary
determinations regarding admissibility of evidence." 753 F.2d at 1241. We said
that "we will not prescribe any mandatory procedures that district courts must
follow in every case involving proffers of scientific evidence," and then noted "

[a] few general observations..." as to how the preliminary evidentiary issues

might be decided under Rule 702. We stated:
139 It would appear that the most efficient procedure that the district court can use
in making the reliability determination is an in limine hearing. Such a hearing
need not unduly burden the trial courts; in many cases, it will be only a brief
foundational hearing either before trial or at trial but out of the hearing of the
jury. In the course of the in limine proceeding, the trial court may consider,
inter alia, offers of proof, affidavits, stipulations, or learned treatises, in addition
to testimonial or other documentary evidence (and, of course, legal argument).
140 Id. Here, the district court already had before it the depositions and affidavits of
the plaintiff's experts. Nothing more was required.
141 This conclusion is not inconsistent with our recent holding in Elcock v. Kmart
Corp., 2000 WL 1486489 (3d Cir. Oct. 10, 2000). There, we reversed an award
of damages and remanded for an in limine hearing as to the admissibility of the
testimony of plaintiff's economic loss expert. The witness in question, Dr.
Chester Copemann, testified as an expert in vocational rehabilitation, and his
testimony "substantially informed the large award for loss of future earnings
and earning capacity." Id. at * 1. We reversed based upon our conclusion that
"there should have been a Daubert hearing prior to the receipt of Copemann's
testimony...." Id. The defendant there had "repeatedly requested that the District
Court conduct a Daubert hearing regarding Copemann's methods as a
vocational rehabilitationist." Id. at *7. The case was litigated before the
Supreme Court's holding in Kumho Tire, and the district court did not view the
admissibility of the testimony of plaintiff's nonscientific expert as a Daubert
issue. Id. However, Elcock, like Padillas, is a situation where the "gatekeeper"
could not determine what methodology the expert used, and the reliability of
the expert's conclusion could therefore not be established. In Elcock, we stated:
142 [A] review of Copemann's vocational rehabilitation testimony demonstrates the
significant reliability questions raised by his methodology and compels the
conclusion that a Daubert hearing would have permitted a fuller assessment of
Copemann's analytical processes and thus was a necessary predicate for a
proper determination as to the reliability of Copemann's methods.
143 Id. at *8. In other words, a hearing was necessary to determine how the expert
reached his opinion. Id. at *9 ("An expert's opinion is reliable if it is based on
the methods and procedures of science rather than on subjective belief or
unsupported speculation; the expert must have good grounds for his or her

belief.")(citations and internal quotations omitted). However, "because

Copemann never explained his method in rigorous detail, it [was] nearly
impossible for [the defendant's] experts to repeat Copemann's apparently
subjective methods... " Id. at *11.18 However, here, Noettl did explain how he
arrived at his opinion, and he did it in as much detail as possible given the
nature of his "inquiry."
144 Accordingly, we reject Oddi's assertion that he was entitled to an in limine
hearing before the court could reject his expert's testimony. Our conclusion
does not, however, end our inquiry. We must still determine whether the district
court abused its discretion in ruling that Oddi's proffered expert testimony was
inadmissible under Rule 702 and Daubert.19
145 B. The District Court's Exercise of Discretion.
146 Because "the evidentiary requirement of reliability is lower than the merits
standard of correctness," the standard for determining scientific reliability"is
not that high." Paoli II, at 744-45. The test is not "[w]hether the... expert might
have done a better job." Kannankeril, 128 F.3d at 809. Nonetheless, even
though the Federal Rules of Evidence "embody a strong and undeniable
preference for admitting any evidence which has the potential for assisting the
trier of fact," Kannankeril, at 806, we do not believe that the district court
abused its discretion in rejecting Oddi's expert testimony here.
147 As we noted earlier, the factors to be considered in a Daubert admissibility
inquiry include:
148 (1) whether a method consists of a testable hypothesis; (2) whether the method
has been subject to peer review; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the technique's operation;
(5) whether the method is generally accepted; (6) the relationship of the
technique to methods which have been established to be reliable; (7) the
qualifications of the expert witness testifying based on the methodology; and
(8) the non-judicial uses to which the method has been put.
149 Paoli II, at 742 n. 8. While Noettl clearly meets Daubert's qualifications
requirement, his expert opinion does not satisfy any of the other considerations
that determine admissibility.
150 Noettl posited two hypotheses. His first hypothesis was that the front bumper's
design should have included either bracketry or a brace system that would have

increased the bumper's rigidity, prevented the truck from ramping, and
deflected the vehicle back onto the roadway after impact with the guard rail.
His second hypothesis was that thicker and/or ribbed metal on the flooring of
the cab would have retained the integrity of the cab. However, Noettl quite
candidly testified that he never tested either hypothesis. Consequently, he has
not satisfied the first of the Daubert factors. The Supreme Court has explicitly
instructed, "[o]rdinarily, a key question to be answered in determining whether
a theory or technique is scientific knowledge that will assist the trier of fact will
be whether it can be (and has been) tested." Daubert, at 593 (emphasis added).
151 Although Daubert does not require a paradigm of scientific inquiry as a
condition precedent to admitting expert testimony, it does require more than the
haphazard, intuitive inquiry that Noettl engaged in. Given Noettl's responses,
Oddi could not establish the existence of Noettl's methodology and research let
alone the adequacy of it.20 This is illustrated by Noettl's attempt to explain how
he arrived at his conclusion. Noettl testified that he had "studied" bread trucks
but was not able to state if they were the same kind of truck that Oddi was
driving or even if they were produced by the same manufacturer.
152 Q: What type of vehicles [did you examine]?
153 A: Bread trucks.
154 Q: Whose bread trucks? Who made them?
155 A: They were in front of a grocery store and I walked up and looked at them. I
didn't record anything off of them. I seen them [i.e., bracketry or wedge
supports] on them [i.e., front bumpers].
156 *****
157 Q: You didn't make a note of what the bread truck was so you could go back
and say, "Here's the design I'm proposing and somebody is already using this."
158 A: I said that in my mind, and I had groceries and I didn't have a camera and
nothing else.
159 Q: You don't remember the name of the bread company?
160 A: No, I don't. It might come to me. I can't tell you, no.

161 *****
162 Q: You don't know whether or not those trucks would have sustained a bending
of the bumper the same as this truck because we don't know what the forces
are, right?
163 A: I would say that they have a better chance, but I can't tell you more than that,
no. That's correct.
164 *****
165 Q: But, what you've seen, you don't know whether or not that would have
changed the scenario in this accident one way or the other?
166 A: I haven't evaluated that.
167 App. at 53.
168 Moreover, not only did Noettl fail to test either hypothesis, he never even
considered the design of the guardrail or the possibility that the damage to
Oddi's truck was a factor of the design of the guardrail, not the design of the
truck.
169 Q: What if the guardrail was deformed and bent back by the force of the impact
so it was bent to the point where it was lower than the bumper? Could a ride-up
occur then?
170 A: It if was bent back further than the bumper's height.
171 Q: If it was bent back and, therefore, it was lower than the height of the
bumper, could it ride up?
172 A: It's possible. I haven't thought of it, and how long. I would have to look at
that. If you, your tire is exposed to ramping -173 Q: If you have the bumper and the guardrail here and the guardrail bends down
to a point lower than the bumper, the tire could ride up on it, isn't that correct?
174 A: That is a possibility, yes.

175 App. at 46.

176 Noettl also conceded that strengthening the bumper as he proposed could result
in even greater injury because the increased rigidity could transmit more force
to the driver of the truck than the defendants' design.
177 Q: To get back to my question, would the energy-- if you had a rigid bumper,
on impact, the energy of the impact and the force of the impact would be
transferred to the occupants, right?
178 A: Some of it would, yes.
179 Q: More of it would than if you had a bumper that had give to it?
180 A: Right.
181 App. at 40-14. Noettl did not offer any testimony as to the point on the
continuum between absolute rigidity and the rigidity of defendants' design that
would achieve greater protection than the bumper on Oddi's truck yet afford a
practical alternative.
182 Noettl's explanation of the purported defect in the floor of the truck was
undermined by the same laws of physics that undermined his testimony that the
bumper design was defective.
183 Q: What was wrong with [the floor]?
184 A: It wasn't strong enough to prevent intrusion in this type of an accident into
the occupant compartment, exposing the driver to the dangers of that intrusion.
185 Q: What should have been done?
186 A: The metal could have been made thicker. It could have been ribbed.
187 3/31/99 Op. at 12-3. However's Noettl's own logic clearly suggests that any
such alteration may well have been less able to absorb impact itself, and
therefore it may have simply transferred even more force to the occupant than
the defendants' design did. Although it may well be that there is an ideal
thickness that would have been able to absorb far greater force than the

defendants' design yet still protect the truck's occupant, Noettl was not able to
identify that point. He was asked "How thick should it have been?" He
responded: "Well, the way I would do that is to thicken the metal and rib it and
then do a test to see, if under these types of foreseeable accidents, it would
really retain the integrity of the occupant compartment." 3/31/99 Op. at 12-13.
However, he never did that. Id.
188 Not only did Noettl not test his hypotheses, he did not even attempt to calculate
the force that was inflicted on the truck by the guardrail at impact; he did not
calculate the force of the bridge abutment on the truck; and he did not measure
the strength of the guardrail or determine how much force the guardrail could
sustain. He did not know how much was required to bend the bumper or
penetrate the floor, or how much force the bumper or floor could withstand.
His hypothesis about adding a "wedge" or bracket to bumper was likewise
without support as he did not determine the tensile strength or gauge of
whatever metal should be incorporated into his alternative design. Accordingly,
there was no way of knowing if his suggested alternative would better protect
the cab's occupant, or if the suggested modifications were practical.
189 Essentially, Noettl's expert opinion that the front bumper would have sustained
the impact with the guard rail and not ramped had it been strengthened with
either bracketry or wedge supports and that the flooring in the occupant
compartment should have been thicker or ribbed is based on nothing more than
his training and years of experience as an engineer. Although there may be
some circumstances where one's training and experience will provide an
adequate foundation to admit an opinion and furnish the necessary reliability to
allow a jury to consider it, this is not such a case. See e.g., Lauria, at 599
(former Conrail foreman's many years of experience with railroad track
equipment, maintenance and safety equipment, qualified him as an expert to
testify about Amtrak's responsibility to inspect and maintain railroad track in a
safe condition). Noettl's ipse dixit does not withstand Daubert's scrutiny. An
"expert's opinion must be based on the methods and procedures of science
rather than on subjective belief or unsupported speculation." Paoli II, at 742
(citations and internal quotations omitted).
190 Since Noettl conducted no tests and failed to attempt to calculate any of the
forces on Oddi or the truck during this accident, he used little, if any,
methodology beyond his own intuition. There is nothing here to submit to peer
review, and it is impossible to ascertain any rate of error for Noettl's
assumptions about the forces that caused Oddi's horrific injuries. Similarly, no
standards control his analysis, and no "gatekeeper" can assess the relationship
of Noettl's method to other methods known to be reliable and the non-judicial

uses to which it has been put. Clearly, the district court did not abuse its
discretion in excluding Noettle's proffered expert opinion testimony.
191 We also note an obvious gap in Oddi's argument. As recited earlier, Oddi
retained two experts, Noettl and Kazarian. The district court also found that
Kazarian's expert opinion testimony did not satisfy Daubert. 3/31/99 Dist. Ct.
Op. at 15-16. Kazarian's expert opinion went to the "enhanced injuries" element
of the crashworthiness claims. Unless Oddi can establish that the defendants'
design and/or manufacture enhanced injuries he would not have otherwise
sustained, or caused him to sustain injuries that he would not have sustained
otherwise, there can be no recovery under a theory of crashworthiness.
Carrasquilla, 963 F. Supp. at 458. Consequently, even assuming arguendo that
Oddi convinced us that Noettl's testimony was improperly excluded, his failure
to address the admissibility of Kazarian's testimony means that Oddi has no
admissible evidence to demonstrate the "enhanced injuries" elements of a
crashworthiness claim. 21
192 C. The District Court Properly Granted Summary Judgment on the Negligent
Failure to Test Claim.
193 Finally, Oddi argues that the district court erred by granting summary judgment
to Ford and Grumman on his negligent failure to test claim. As noted, Oddi
claims that a manufacturer has an affirmative duty to test its product to see if it
is defective. He then contends that "it is within the comprehension of lay jurors
to understand that if the Defendants had tested this truck, they would have been
aware that, in an accident, its design would defeat the purpose of a guardrail."
Oddi's Br. at 27. Accordingly, Oddi argues that even if his expert testimony
was properly excluded, his negligence claim still survives because he does not
need expert testimony to establish that claim.
194 As a general principle, "[e]xpert evidence is not necessary... if all the primary
facts can be accurately and intelligibly described to the jury, and if they, as
[persons] of common understanding, are as capable of comprehending the
primary facts and of drawing correct conclusions from them as are witnesses
possessed of special or peculiar training of the subject under investigation."
Padillas, at 415-16 (citation omitted); see also Cipriani v. Sun Pipe Line Co.,
574 A.2d 706, 710 (Pa. Super. 1990)("However, expert testimony is not
required when the matter under consideration is simple and lack of ordinary
care is obvious and within the range of comprehension of the average juror.")
(citations omitted). Although expert evidence is generally required in a products
liability case where a defect is alleged, we have never foreclosed the possibility
that a defective condition may be established through non-expert evidence. In

Padillas we opined that since the case was at the summary judgment stage, it
was "premature to rule out that testimony and pictures may enable the jury to
clearly see the construction of the machine and the manner of its use, rendering
expert testimony unnecessary." Padillas, at 416. Consequently, we held that it
was entirely possible that Padillas' non-expert testimony may be "sufficient to
submit his claim of defect to the jury." Id.
195 The truck Oddi was driving is not at all like the chicken cutter with exposed
blades in Padillas. A whirling cutting blade without a proper guard is obviously
dangerous. It could reasonably be regarded by a lay juror as a design defect. In
addition, in Padillas, plaintiff offered non-expert testimony including, but not
limited to, reports from defendant's own employees that referred to "Safety
Problems," and a report from the defendant's engineering manager "addressing
problems with the machine... including `safety concerns [in that the blades
were] not well grounded.' " 186 F.3d at 415.
196 We do not believe that a juror could look at the front bumper and the flooring
of the cab of the truck Oddi was driving and reasonably conclude, not only that
its design was defective, but also that testing would have disclosed the defect
and that it could have been remedied. Such conclusions are within the peculiar
competence of experts. Inasmuch as Oddi's "defect expert" does not survive
Daubert scrutiny, the district court properly granted summary judgment to Ford
and Grumman on Oddi's negligent failure to test claim.22
197 VI. CONCLUSION.
198 We are not unsympathetic to Oddi. He suffered horrific and catastrophic
injuries while driving the truck that had been designed and/or manufactured by
the defendants. That does not, of course, establish that either defendant is
necessarily liable for any of those injuries or that Oddi's proffered proof was
sufficient to prove liability on their part. Nor does our holding suggest that
every plaintiff must engage in such sophisticated and refined testing (including
crash-testing) as to preclude a successful suit for damages for all but the
wealthiest of plaintiffs or a group of plaintiffs sufficiently large to allow the
economies and practicalities of class certification. The inquiry required under
Daubert ought not to become an impenetrable barrier for plaintiffs with limited
resources or restricted circumstances. As noted above, the Supreme Court
reminds us that the "inquiry envisioned by Rule 702 is... a flexible one."
Daubert, 509 U.S. at 595. It does not require the most elaborate or sophisticated
tests or studies that can be imagined by opposing counsel. Nevertheless, here,
the district court's inquiry established that Oddi's proffered expert testimony
was not admissible under Fed. R. Evid. 702, and we conclude that the district

court did not abuse its discretion in rejecting that evidence. Accordingly, we
will affirm the district court.

NOTES:
1

Jurisdiction in the district court was premised upon diversity of citizenship. 28

U. S. C. S 1332. Oddi is a citizen of Pennsylvania. Ford is a Delaware
corporation and Grumman is a New York corporation.

It is impossible to determine exactly how many miles it had been driven

because the maintenance records are missing, and the odometer had turned over
an unknown number of times.

Oddi also asserted negligence claims against the Commonwealth of

Pennsylvania, Department of Transportation ("PennDOT") based upon the
design of the guardrails and the bridge abutment. However, the record does not
disclose the status of that action.

Oddi also asserted steering defects against Ford. However, after discovery, he
dismissed those claims.

Ford and Grumman also filed third-party complaints against PennDOT in the
removed action in district court. However, they subsequently voluntarily
dismissed that action. Consequently, PennDOT was no longer a party in the
district court action and is not a party in this appeal.

"In a typical products liability action in Pennsylvania, a plaintiff must show: (1)
the product was defective; (2) the defect existed while the product was in the
control of the manufacturer; and (3) the defect was the proximate cause of the
injuries." Habecker III, 36 F.3d at 284.

Because this is a diversity case, Pennsylvania products liability law applies.

Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 413 (3d Cir. 1999).

The Pennsylvania Superior Court accepted the crashworthiness doctrine in

1994. Kupetz v. Deere & Co., Inc., 644 A.2d 1213 (Pa. Super. 1994). The
Pennsylvania Supreme Court has subsequently, referred to the crashworthiness
doctrine, but has not yet officially adopted it. See Schroeder v. Commonwealth
of Pennsylvania, Department of Transportation, 710 A.2d 23, 28 n.8 (Pa. 1998).

We have noted that "[t]he theory of products liability is applied to three types
of defects: design, manufacturing and marketing (warnings). The

crashworthiness doctrine implicates the overtures of design defects." Habecker

III, 36 F.3d at 283 n.6.
10

It has been suggested that the third and fourth elements of the crashworthiness
doctrine are corollaries. Huddell v. Levin, 537 F.2d 726, 738 (3d Cir. 1976).

11

Fed. R. Evid. 104(a) provides: "Preliminary questions concerning the

qualification of a person to be a witness, the existence of a privilege, or the
admissibility of evidence shall be determined by the court, subject to the
provisions of subsection (b)[pertaining to conditional admissions].

12

Obviously, evidence must first be relevant to be admissible. Relevant evidence

is evidence that helps "the trier of fact to understand the evidence or to
determine a fact in issue." Id. at 591. This consideration of relevance has been
described as one of "fit" or "helpfulness." It requires "a valid scientific
connection to the pertinent inquiry as a precondition to admissibility." Daubert,
at 591-92.

13

Ford and Grumman do not challenge his qualifications as an expert.

14

This sentence could be read as advancing a new theory of design defect -- a

"propensity to ramp" theory - because of the height, weight and design of the
truck. That is, it could be taken as a theory separate and apart from Noettl's
defective front bumper and floor board theories. However, during his second
deposition, Noettl clearly stated that he was not advancing any such separate
theory. He testified:
Q: Alright. "Has a propensity to ramp." When you say that, you are just telling
me that this is a bigger truck. And as a bigger truck, you believe that it has
more of a propensity to ramp than smaller vehicles?
A: That is correct.
Q: That is all there is to it?
A: That is correct.
Q: And is that a defect?
A: No. That is not in and of itself a defect. The defects are the things we
discussed. [i.e., the bumper and floor boards, discussed in a prior deposition].
Supp. App. at 144a (emphasis added).

15

Although he now makes this argument to us, he never asked the district court to

conduct such a hearing.

16

In Lauria we specifically noted that the Circuit Courts of Appeals were split
over whether Daubert applied to nonscientific expert testimony. Id. at 599 n.7.

17

We do not suggest that the district court would have abused its discretion in
denying an in limine hearing on this record even if Oddi had made these
claims.

18

In Elcock, we also concluded that the trial court had erred in allowing the
plaintiff's economist to testify at trial because his testimony was not
"accompanied by a sufficient factual foundation [to be] submitted to the jury."
2000 WL 1486489 at *17.

19

Two small matters also remain that pertain to this portion of Oddi's argument.
First, Oddi argues that the district court failed to rule on his motion to strike
Grumman's reply brief filed after Oddi filed his response to the original
summary judgment motions. As noted earlier, Grumman's initial summary
judgment motion did not raise a Daubert challenge to Oddi's experts' testimony.
It was only after Oddi responded to Ford's and Grumman's summary judgment
motions that Grumman asserted a Daubert challenge via a reply brief. Oddi
then filed a motion to strike, presumably asserting that the reply brief was filed
without leave of court. However, the district court did not rule on Oddi's motion
to strike, and Oddi claims that he was prejudiced by the district court's failure to
strike Grumman's reply brief. The prejudice lies in the fact that, according to
Oddi, Ford's Daubert challenge was only to Noettl's bumper testimony and not
the flooring testimony, while Grumman's was to both the bumper and flooring.
Thus, Oddi argues that he was not able to respond the newly asserted
challenged to Noettl's flooring testimony. However, Oddi would be hard
pressed to demonstrate prejudice because Ford's summary judgment motion
mounted a Daubert challenge to Noettl's testimony with regard to the bumper
claim as well as the flooring claim. Thus, even if it is assumed for argument's
sake that the district court improperly failed to strike Grumman's reply brief,
Oddi suffered no harm because Noettl's testimony as to both the bumper and
the floor was attacked at the outset by Ford. Furthermore, Oddi does not cite
any authority for his contention that it was improper for Grumman to file a
reply brief or any authority supporting his contention that Grumman's reply
brief should have been stricken. Consequently, Oddi's prejudice argument is
without merit.
Second, Oddi argues that the district court did not comply with its local court
rule 7.1F which requires oral argument for dispositive motions "unless
expressly precluded by the court." However, this argument is also without

merit. As the district court expressly noted, it is the custom and practice of the
United States District Court for the Western District of Pennsylvania to
preclude oral argument on dispositive motions. The ability of the district courts
to preclude argument is expressly given to the court by the local rule.
20

Methodology is defined as "body of methods, rules, and postulates employed

by a discipline: a particular procedure of set of procedures." WEBSTER'S
NINTH NEW COLLEGIATE DICTIONARY 747 (1990).

21

Moreover, Kazarian's testimony would not have been as helpful as Oddi

believes even if it had been admitted. Kazarian conceded that he had no opinion
on what injuries Oddi would have suffered had there been no compromise to
the floor of the occupant compartment and had no opinion on what injuries
Oddi would have sustained if the truck had not ramped the guard rail.

22

Oddi claims that neither Ford nor Grumman moved for summary judgment on
his negligent failure to test claim. Oddi's Br. at 27. That is incorrect. Ford's and
Grumman's summary judgment motions were directed to all of Oddi's claims,
including his negligence claims.